Lawyer by day, hacker by night, proud Navy veteran, writer, promoter of civility in political discourse, Philadelphia and Penn State sports fanatic, practicing philomath, bibliophile, enigmatologist, and last but certainly not least, Dad and Husband.

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27 December 2010

Do we really even need net neutrality?

In my post responding to Michael Ciarlo's "A Guide to the Open Internet," my reply was primarily one of procedural objections to processs by which net neutrality regulations were being adopted; while this post is primarily one of substantive objections to the regulations themselves.

I mentioned that one of his motivations for arguing for net neutrality was his personal experiences. He was unable to access ESPN3 on XBOX Live because ESPN didn't have a specific agreement with his ISP, Time Warner Cable. He felt (perhaps justifiably so) that Time Warner shouldn't be blocking content between XBOX Live and his console just because he didn't subscribe to ESPN3.

As I stated in my reply, I was and am sympathetic to his circumstances. But I also argued that these instances were few and far between, and largely solve themselves. I cited, for example, Comcast's interference of p2p traffic. Despite the Court of Appeals ruling in Comcast's favor, and as a result having no FCC regulations requiring them to do so, and despite having no other legal requirement to do so, Comcast agreed to stop interfering in such traffic. Net neutrality did not solve this problem.

Mr. Ciarlo's cause célèbre will soon go the same way. Back in September Time Warner agreed to bring ESPN3 to mobile devices and PCs, and it appears that this will soon extend to XBOX Live (perhaps even within the next few weeks). Net neutrality did not solve this problem.

Perhaps the market forces are not as swift as we would like, but neither of these cases took the hammer of government regulations to solve. Furthermore, there is no guarantee that a government-regulated net neutrality framework would solve these problems any quicker than the market. The current net neutrality rules specify a complaint process involving the FCC, but that could easily spillover into the courts over the "reasonable" nature of an ISP's network management practices. As FCC Commissioner McDowell said (pdf): "'Reasonable' is a subjective term...[I]t is...perhaps the most litigated word in American history..."

The other case he cites is the Fascinate phone locked to the Bing search engine. But the current FCC net neutrality rules carve out exemptions for wireless carriers, so it is unlikely that even these rules could change this. Paragraph 98 of the net neutrality order makes this clear (emphasis is mine):

Further, although we do not require mobile broadband providers to allow third-party devices or all third-party applications on their networks, we nonetheless require mobile broadband providers to disclose their third-party device and application certification procedures, if any; to clearly explain their criteria for any restrictions on use of their network; and to expeditiously inform device and application providers of any decisions to deny access to the network or of a failure to approve their particular devices or applications.

So you have a radical solution (government regulation without congressional authorization) that is either not truly required (because the few problems that do exist tend to solve themselves) or doesn't actually solve the problems that do exist (as in the case of exempting wireless ISPs); or worse, both not required and doesn't solve the problem. Which, not surprisingly, turns out to be the case of many proposed government "solutions."

Returning to the question posed by the title of this blog post: "Do we really even need net neutrality?" I have argued that substantively, we do not. But many of you undoubtedly disagree with me. I'll ask the same question that I did in my previous post: What are your examples that the Internet is broken, now?